B.C. VIEWS: The limits of Indigenous rights

The 20-year battle against a year-round ski resort proposal in the Purcell Mountains has finally ended in defeat for the Ktunaxa Nation and its allies, with a 7-2 decision by the Supreme Court of Canada.

Led by Chief Justice Beverley McLachlin, whose term has been notable for advancing Indigenous rights, the court ruled that constitutional protection for religious expression does not extend to the Ktunaxa’s claims about Jumbo Glacier, as the East Kootenay alpine basin is known.

Six years ago, then-NDP leader Adrian Dix invited Ktunaxa tribal council chair Kathryn Teneese and her supporters to the B.C. legislature to unveil their legend about Jumbo Glacier.

They broke their silence in a big way. With national newspaper ads, glossy press materials, custom banners and a lavishly produced video, they unveiled what they called their secret name for the region: Qat’muk.

“It’s where the grizzly bear spirit was born, goes to heal itself, and returns to the spirit world,” Teneese told a news conference hosted by Dix on Nov. 15, 2011.

Retired hockey player Scott Niedermayer came up from his California home to add his vague notion of grizzly bear habits to the message, which was to reject a B.C. environmental permit to build Jumbo Glacier Resort.

This expensive public relations and legal offensive was supported by a U.S.-based environmental group called Yellowstone to Yukon, which wants to extend national park status far into Canada. After the court decision, their spokesperson compared the Jumbo project to the explosive destruction of Buddhist monuments by the Taliban in Afghanistan.

The big reveal in 2011 was actually a made-for-TV re-announcement of Teneese’s visit to the legislature one year previously, to present the Qat’muk declaration to then-aboriginal relations minister Ida Chong.

The Ktunaxa were in treaty talks with Canada and B.C., but Jumbo was not part of their declared territory. The high basin is claimed by the Shuswap Indian Band, which supports Jumbo and signed a benefits agreement with the developers.

Shuswap Chief Paul Sam wrote to the B.C. government in 2010, describing Jumbo Basin as a dead end with no traditional food gathering or travel function. Walking up doesn’t look like an option.

The Purcells are a world famous helicopter skiing destination, and Jumbo Basin is a long-established run. The resort was proposed in 1991, with a gondola, lifts and accommodation for up to 6,000 people on a site once used for a sawmill.

The long effort to kill this project with myth, protest and lawyers reflects current NDP environmental policy. See salmon farms and the Trans Mountain pipeline expansion.

No one has attacked Jumbo more than Nelson-Creston MLA Michelle Mungall, now energy and mines minister. She mocks the resort municipality that has been set up to enable development of Jumbo. That formula has been successful with other resorts, notably Whistler-Blackcomb.

The Jumbo decision is a harsh lesson for Premier John Horgan, who claims to endorse the UN Declaration of the Rights of Indigenous Peoples. It declares that first peoples must grant “free, prior and informed consent” for any development in their territory.

This assertion of veto power is again rejected in the Jumbo ruling, which describes the Crown’s duty to consult with Indigenous people this way: “The process is one of ‘give and take,’ and outcomes are not guaranteed.”

The McLachlin court has refused to hear a similar territorial claim over the Site C dam on the Peace River, brought by the West Moberly and Prophet River First Nations. Lower courts have concluded that it is their chiefs who wouldn’t negotiate in good faith.